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Hindu Law

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HINDU LAW The Acts establishing courts of civil justice in the various provinces enjoin that Hindu law, or Mohammedan law, or (in Burma) Buddhist law is to be applied to the adherents of those faiths in such matters as succession, inheritance, marriage, di vorce, dower, guardianship, minority, family relations, caste or any religious usage or institution. The actual lists vary in the different Acts. Indeed in Bombay the words used are "the usage of the country in which the suit arose; if none such appears, the law of the defendant." In Bombay, the Punjab and Oudh, cus tom, if proved, overrides law, and in Madras, the Central Prov inces and Burma it is given the same force as law. Of course a saving is made of anything actually repealed by a statute or Act, and of all things contrary to public policy. For many pur poses Jains and Sikhs are Hindus.

The section on legal literature in the article SANSKRIT (q.v.), mentions the written sources of Hindu law. The more ancient of these are regarded as sacred, and, as it is sacred, Hindu law is theoretically unalterable. But in fact it has changed, by ad mitting peoples wholesale into Hinduism who brought their cus toms with them, by slow local and family changes, and by adapta tions to historical, political, economic and social changes. As to custom, indeed, Manu's code says "immemorial custom is trans cendant law." In actual practice, and apart from modifications by custom, Hindu law as administered in the courts is substan tially derived from the commentaries of the great commentators. For most purposes the chief among these are the Daya Bliaga of Jimuta Vahana in Bengal proper only, the Mitakshara of Vijane swara all over India, and the Vayavahara Mayuklia of Nilakanta in western India. The Daya Bhaga in Bengal, and the Mayuklia in Bombay overrule the Mitakshara where they differ from it, and in the case of the Daya Bhaga the differences are so far reaching in the matter of family property and in the theory of inheritance that it is rightly held that there are two main schools of Hindu law, the Mitakshara school and the Daya Bhaga school. The former is divided into the Benares school (Upper India generally), which prefers the Mitakshara to all other commen taries at all points, the Mithila school (northern part of the prov ince of Behar and Orissa), the Maharashtra school (western In dia) and the Dravida school (southern India). The effects of de cisions of the judicial committee of the privy council and of the various high courts on Hindu law are similar to those of the English courts on English common law and statute law.

The Joint Family.—The striking feature of Hindu society and Hindu law is the joint family. It is the form, no doubt, in which the Aryan patriarchal family has survived in India. The joint family is seen at its weakest in Bengal, the region where Brahmanical ecclesiasticism upon which the Daya Bliaga is based has had its greatest effect. Brahmanical influence on law prob ably increased at the post-Buddhist Hindu revival, but seems to have had little or no effect in the Punjab, or among the Aryan, or Aryanized, peoples of the Himalayas. Among some of the Hima layan clans, who undoubtedly have Aryan blood in them, the joint family is more like the Roman family than it is among Hindus of the Mitakshara school in India generally. The joint family is so much taken for granted in the Shastras and the commentaries that it is scarcely described in them.

As the question of whether a family's land could be validly alienated probably did not arise until comparatively recent times, the distinction between the right to manage, on the one hand, and ownership with the right to alienate on the other, probably did not become an important point of law for many centuries. When it did arise, two conflicting theories emerged. One is that of the Mitakshara, that down to the great-grandson of a living ancestor a male Hindu acquires by birth a right of ownership as a co parcener in the ancestral family property. The other is that of the Daya Bhaga, that the living ancestor is the sole owner, with unfettered control and power to alienate, even for personal pur poses, and that on his death his descendants in the direct male line who have no ascendant living inherit the property in distinct and specified shares, and may either divide it up or retain it as a , jointly worked and managed property. Under the Mitakshara no co-parcener's share is a definite thing, even if he has no ascendant living, until a partition is called for. Until that event occurs each co-parcener's share can, in a manner, be said not to be ascertainable. And when a co-parcener, even the common an cestor, dies his rights pass by survivorship, and not by inherit ance. Under the Daya Bhaga, then, when the common ancestor dies the ownership passes in immediately ascertained shares to his heirs under Daya Bhaga law. But in such a case under the Mitakshara the ownership, that of the family, is unaltered, but in the family there is one co-parcener the less, and the distribution on a partition made after his death will differ from that on one made before it. And, while the property remains joint, there is no passing of it by inheritance. The nature of the ownership of joint property is not discussed in either the Mitakshara or the Daya Bhaga.

If a family of brothers governed by the Daya Bhaga keep their property undivided, then, upon the death of one of them, his share goes to his heir or heirs, who, in default of agnate de scendants, may be his widow, his daughters, or the sons of his daughters, and in this last case his share will pass into another family, but it need not therefore be separated off by a partition. In a like case under the Mitakshara, if the deceased brother had any agnate male descendants they were already co-parceners in the family property, while his wife, his daughters, and the sons of his daughters could not be co-parceners. Upon his death there was one co-parcener the less in the family, and the distribution on a partition would be somewhat altered. As long as two or more co-parceners remain in a Mitakshara joint family, such property as it may own cannot pass out of it by inheritance.

There is a standing presumption that Hindus nearly related to one another by agnation form a joint family. When they are so far apart in blood as second cousins that presumption is not very strong. And there is some presumption that anything in the possession of a member of a joint family belongs to the family. However, Hindu law now recognizes self-acquired property, though it took a long time to do so, even as the peculium of Roman law was of slow growth. Gains of valour, science and learning made without help from family resources are the chief source of self-acquired property, apart from what is styled "ob structed inheritance." But when self-acquired property passes by inheritance to agnate descendants it at once becomes ancestral, and under the Mitakshara the inheritors, unless they have already separated from one another, hold it as an ordinary joint family co-parcenary. Under the Daya Bhaga the fact that each co parcener has a known and particular share of which he can dis pose in his lifetime as he pleases by sale or gift or in any other way, without being answerable to anyone, greatly simplifies ques tions arising out of alienations. But under the Mitakshara the dealings by a co-parcener with the share which would fall to him on a partition, and the rights of his personal creditors against that share, both while he is alive and after his death, have given rise to legal difficulties.

Non-inheritors.

A joint family will usually have among it members who are not co-parceners. Under the Daya Bhaga the wives of co-parceners, the male agnate descendants of co-par ceners, and the unmarried female descendants of co-parceners or of their agnate descendants come into this category, as well as those who might in time be co-parceners but that Hindu law de bars them from inheriting, e.g., those born deaf, dumb, blind or insane. Under the Mitakshara the dependent members will not in clude qualified sons, grandsons or great-grandsons of the senior generation of living co-parceners, for these are co-parceners them selves by right of birth, unless disqualified by any defects which debar from inheritance. But among the dependents there will be widows of deceased co-parceners. Under the Daya Bhaga such a widow without sons or agnate descendants will herself be owner, at least for her life, of her deceased husband's share. Under both schools these dependents must be maintained, out of the shares of their respective branches of the family in the case of the Daya Bhaga, and out of the general family fund under the Mitakshara. And, in theory, under the Daya Bhaga each actual co-parcener, which here means the owner by inheritance, or possibly by pur chase, of a share, can claim, at least approximately, that a corre sponding share of the family income be allotted to him. In a Mitakshara joint family there is no such right. No one can claim more than that he is to be maintained, with his wife and other de pendents, on a scale suited to the family's resources. Only if fraud or embezzlement or the like is alleged, will current accounts be gone into. When a partition has to be made a capital account is, of course, necessary.

Partition.

To the ancient Hindu lawgivers and commenta tors partition and inheritance are different aspects of the same subject, and, in fact, in their view partition was the dominant aspect. This was because a Hindu ought to have at least one male agnate descendant, obtained in the last resort by adoption, and therefore ought to die a member of a joint family, if gov erned by the Mitakshara. And, even under the Daya Bhaga, when two or more sons succeed their father, they do not get defi nitely marked out shares absolutely their own until they effect a partition. Partition is in theory simple enough under the Daya Bhaga. Each co-parcener has a known share, all that has to be done is to lay out metes and bounds in the immovable property, and to make a fair division of the movables. But when the Mitakshara applies the first thing to be done is to determine the share of each co-parcener. The division is made by branches. And when there is a division between a living ascendant and his descendants the ascendant gets the same share as goes to each of his sons. Thus a father and his four sons make a partition, and each gets one-fifth of the property. If any of the sons had predeceased the father, leaving sons or agnate grandsons, these latter between them take what would have been his share. If four brothers divide, whose father and other ancestors are dead, each takes one-fourth.

Ancestral and Separate Property.

In case of dispute it will be necessary under either school to decide what is, and what is not, family property. What is claimed and proved to be either self-acquired or separate property has to be excluded from the hotch-pot, and there may have to be special provisions about the right to use wells, rights of way and other things which cannot be split into parts. There is a general Act applying to the making of partitions (Act IV., of 1893). It should be added that in most provinces partitions of land assessed to land revenue are made by the revenue courts, and in those cases the joint owners often are not members of a joint family.

A father or other ascendant governed by the Daya Bhaga is sole owner as against his sons and other descendants, yet there are texts indicating that if he make a partition among his sons he must divide the property equally. However, he undoubtedly can make a series of gifts to his sons or other descendants, and by them dispose of the estate in very unequal portions. At the back of this anomaly is the theory that a gift needs acceptance by the donee, and actual transfer of possession, to make it com plete and cognizable in law, whereas a partition does not.

If a member of a Mitakshara joint family obtains a partition of his share, and has then no sons or other agnate descendants, the share is his sole and separate property. But it remains "an cestral," and as soon as he has a son born to him, or adopts one, that son becomes a co-parcener in it with him, and so with all his sons born subsequent to the partition and their sons and grandsons.

Very often the question arises "Has there been a partition or not?" The answer may affect the rights of a third party to whom a member of the family purports to have transferred property. The presumption as to jointness has already been mentioned. But whether there has been a partition or not is a question to be decided on the evidence. A fully united family is joint in house, food, worship and estate. But a family can easily be joint in house and worship and yet separated in food and estate, or it can be joint in estate, and yet to some extent separated in house and in food.

On effecting a partition provision must be made for the de pendents, e.g., unmarried daughters or sisters, mother whose hus band is dead, and incapables. When a dependent belongs plainly to one branch of the family, and that branch does not itself split up, the liability of course attaches to that branch, for instance one of several brothers who separate remains responsible for his own daughters. But when brothers separate who have unmarried sisters or incapable brothers, either a special assignment must be made, for instance to meet the expenses of a girl's marriage, or one member accepts responsibility and receives some sort of com pensation. If it is a mother who has to be provided for, it is not uncommon under the Mitakshara for a part of the estate to be assigned to her. On her death it will be divided among her sons or their descendants.

As in a Daya Bhaga joint family each co-parcener has a definite share which descends by inheritance ; when the estate of such a joint family is the subject of a partition what has to be ascer tained is what portion thereof has devolved under the rules of inheritance to each present member since the death of the person who once held the whole of it. For under the Daya Bhaga all property goes by inheritance when its owner dies, whereas under the Mitakshara the rights of a co-parcener, even if he be one of two only, go by survivorship on his death. So a Hindu governed by the Mitakshara risks losing all chance of inheritance to the rest of the family property when he separates by partition, for as long as two or more members remain joint even their nearest relations, once separated from them by partition, cannot inherit their joint property, as survivorship precedes inheritance. Under the Mitakshara only separate property and self-acquired property can pass by inheritance.

Impartible Estates.—Besides estates which under provincial legislation have been made subject to entail, there are some estates impartible by family custom or special tenure, mostly the residue of suppressed sovereignties or quasi-sovereignties. Junior members and branches of the family are entitled only to main tenance. Under the Mitakshara the rule of succession may involve first discovering the nearest male agnates, and then applying the rule of primogeniture among them, excluding more distant rela tions even in a senior branch.

Inheritance.—We now come to the rules of inheritance. Here there is a divergence of principle between the two schools. The Mitakshara prefers all male agnates, however remote, to any cognate, however near, except the daughter's son. And, except under the Maharashtra sub-school in western India, which does place some women in a more favoured position, the only women it brings in as near heirs are the widow, daughter, mother, grand mother and great-grandmother. The basis of the scheme is prefer ence by nearness of agnate relationship. The scheme of the Daya Bhaga is based upon efficacy of offerings made to the deceased, in fact it holds that the heir gets the estate because he makes the offerings. No doubt the ancient rule, as Mayne surmises, was that the duty to make the offerings fell upon the person taking the estate. But, for the benefit of the priesthood, the later ecclesias tical theories of the Brahmans put all the stress upon the offerings, and said that the estate followed them. This theory brings in some cognates in preference to more remote agnates.

There are three grades of offerings, the full cake, or Pinda, those making it being called Sapindas, the offerings of crumbs made by Sakulyas, and the offerings of water made by Samanodakas. The cake offering is made for three generations, and the crumb offering for three more. The leading rule is that a Hindu has to make the cake offering to his father, his father's father, and his father's father's father, and also to his mother's father, his mother's father's father, and his mother's father's father's father. It is of importance that he does not make offerings to his father's mother's father, and so on. A man is Sapinda to his sons, to their sons, and to their grandsons, as well as to his three direct ances tors. And he is Sapinda to the three generations in the direct male line from his Sapinda ancestors, paternal and maternal. Except in the case of the daughter's son, the claims of all connected with the deceased through a woman on the ground of sapindaship are re jected by the Mitakshara in favour of agnates however remote. But the Daya Bhaga admits these claims with the result, so far as the inner circle of heirs are concerned, of bringing into it sister's son, father's sister's son, and grandfather's sister's son. This inner circle includes those related to the deceased by being descended from a common great-grandfather, or nearer relation, by agnation, and when we get beyond it the differences between the two schools become much greater, for then the Daya Bhaga's preference of all who offer the full cake over all who offer only crumbs, and its doctrines about mutual sapindaship, and about the effects of sapindaship to the same person, have more far-reaching effect.

Order of Inheritance.—Now as to the order of inheritance. The first heirs are sons, agnate grandsons and agnate great grandsons. Grandsons and great-grandsons between whom and the deceased a son or grandson survives do not take directly, but representation is allowed in the case of those the links between whom and the deceased are already dead. But for this case repre . sentation is nowhere allowed in Hindu law, e.g., a brother ex cludes sons of deceased brothers. After the three generations of descendants come the widow, then the daughter, and then the daughter's son. Daughters' sons take per capita, and a living daughter excludes all sons of deceased daughters. Next come the parents, of whom the Mitakshara places the mother, and the Daya Bhaga the father, first of the two. Then brothers, sons of brothers, and agnate grandsons of brothers. Here the Daya Bhaga inter polates the sister's son. Then the grandparents and a like three generations from them, with the father's sister's son interpolated by the Daya Bhaga. Then the great-grandparents and the three generations from them. For the complications beyond this point, especially under the Daya Bhaga, the reader should consult the works of Mayne and Trevelyan. The Maharashtra school brings in the sister between the two grandparents, and after each circle of heirs brings in widows of members of that circle before going on to males in the next larger circle.

Wills.—There can be no doubt at all that in its beginnings Hindu law knew nothing of wills. There is no Hindu word for a will. A legacy can be regarded as a gift to take effect after death, and according to both Hindu and Mohammedan law a gift is of no effect until the donor has transferred possession to the donee. And, when dead, the donor is no longer there to do so. But un doubtedly Hindus were struggling towards a right to bequeath in the days before British rule, especially in Bengal. The doctrines of the Daya Bhaga had individualized property, and ecclesi asticism was bound to favour pious gifts and bequests. Slowly the supreme courts recognized a Hindu's power to make a will, first in Calcutta after formally consulting the E. I. Company's Sadr court. Now it is settled law that a Hindu can dispose by will of all that he can unrestrictedly alienate in his lifetime, i.e., in case of a male, of all his property under the Daya Bhaga, and of all his separate and self-acquired property under the Mitakshara, and in the case of a female of certain classes of her property. The courts felt themselves compelled to deny to a testator the right to create anything approaching a perpetuity. The limits during which final vesting can be delayed are now laid down by legislation passed in 1916. Except in the presidency towns, and in Bengal, Behar and Orissa, where the Hindu Wills Act applies, a Hindu will may be either written or nuncupative, and does not require to be attested.

Debts.—Hindu law undoubtedly recognized that debts ought to be paid, and had its methods of compelling payment. And the religious view of debt in Hinduism is that he who dies in debt suffers torment or degradation in the next life, which can be ended only by payment of the debts. We have seen that Hindu law is a branch of Hindu religious teaching. Hence we have the principle that a son or grandson is under an especial obligation to pay the debts of his father or grandfather. As, in the ordinary way, he is the heir, this is fair and equitable. It is now settled by legislation that no one, whether he take by inheritance or by survivorship, is bound to pay debts to a greater amount than the benefits he receives by the passing of the estate of the deceased. First, of course, it has to be ascertained what property the deceased left. So far as concerns the estate of a Hindu governed by the Daya Bhaga, or the separate or self-acquired property of one governed by the Mitakshara, all debts which could have been recovered from him in his lifetime rank for payment. It is when the deceased died as a co-parcener in a Mitakshara joint family that difficulties arise over the "pious obligation" of sons and grandsons. A debt may have been incurred for joint family purposes, recognized as such by Hindu law. Then all the family property is liable for it. It may have been incurred for the debtor's personal purposes, and if the particular purpose of a debt was not illegal or immoral the doctrine of pious obligation will generally make all that share of the family property liable for it which on a partition would have gone to the debtor and his descendants. Or the debt may have been incurred for illegal or immoral purposes. If the creditor knew, or ought to have known, of such purposes, the family property is not liable for it at all. As the father can burden the sons by his indebtedness, if it be not due to illegality or immorality, so too he can sell or mortgage their potential shares with his, especially to pay a debt already existing. And it is decided that the creditor can implead the sons and grandsons when suing the original debtor in the latter's lifetime. The effect of failure to implead them, or of failure to state distinctly that their shares are attached when execution of a decree is taken out, has been the subject of numer ous rulings of the high courts.

Alienation and Maintenance.—Originally, no doubt, a mem ber of a Mitaks/iara joint family could not alienate his share of the property for personal purposes, until he obtained a partition. Now, not only can he do so according to rulings of the high courts at Madras and Bombay, but his personal debts can be enforced against it, provided always that a decree is obtained and attach ment of the share effected during the debtor's lifetime. On his death his rights vanish, and, as they go by survivorship and not by inheritance, they cannot be followed into the hands of the sur vivors unless the doctrine of "pious obligation" applies to the latter.

The right of certain persons to be maintained out of family funds, or by their living agnate ancestors under the Daya Bhaga, has already been mentioned. But Hindu law also envisages other rights of maintenance. Quite independently of inheritance of ancestral or other property, wives, minor sons, unmarried daugh ters, and infirm and penurious parents must be maintained by a Hindu who has means or can work. And widows and daughters of deceased members of a Mitaksliara joint family, and under either school of law widows of persons whose property is inherited by their sons, grandsons or great-grandsons have a definite right to maintenance. By decree of court that right can be charged upon the property, and under the Daya Bhaga a widow whose sons or other descendants divide up the property of their deceased father or ancestor, can claim the allotment to herself for life of a share equal to that obtained by each son. So, too, when brothers succeed to their father, and there is a widow of a predeceased brother to be maintained. In some circumstances family property can be followed into the hands of a subsequent purchaser to enforce a claim for maintenance. A widow's right to maintenance ceases on re-marriage, and any woman's ceases if she leads an immoral life.

Women's Property.—In some respects, and as regards some kinds of property, the ownership of women under Hindu law differs from that of men. These differences depend on the source from which the property is derived. If a woman has inherited property from a male, or has obtained it as a gift by her husband or as a share on partition, she does not own it in the same way as a man would do ; she obtains only a kind of restricted ownership. She has the full enjoyment and management of it, but she cannot sell it, or give it away, or dispose of it by will; and at her death it goes not to her heirs but to the heirs of the person from whom she obtained it; her ownership simply comes to an end. If she obtained it by inheritance from a male it will go on her death to the heirs of that male; if as a share on partition it will be divided amongst the other sharers; if as a gift from her husband, it will go to the heirs of her husband. In those parts of western India where the Mayukha prevails, by exception full rights of property are given to a woman who inherits from a male who belonged to the family in which she was born, e.g., to a daughter inheriting from her father, or to a sister inheriting from her brother. On her death such property devolves as if she had been a man.

The estate of a woman who inherits only for her own life is one of the difficult problems of Hindu law. It is by no means the same as a "life estate" in English law. The woman represents the estate. She can absolutely dispose of it for a necessity or with the next reversioner's consent. She can surrender it to the next rever sioner. And a purchaser or mortgagee dealing with a woman owner is especially put to inquire into the necessity or into the real con sent of the reversioner, as the case may be, and is bound to act with the very utmost of good faith, because of the habitual seclu sion of women of good social standing. An alienation by a woman, not otherwise justified, is good for her lifetime, apart, of course, from fraud and the like, and a widow with power to adopt devests herself of the estate in favour of the adoptee. A woman owning an estate for life is absolute owner of savings she effects out of income, and unless she deliberately adds them to the estate they go to her heirs.

There is also Stridhana, the absolute property of women. The rules of schools and localities as to this vary. The chief sources of it are gifts from blood relations and gifts at marriage, besides the personal earnings of an unmarried woman. Generally Strid hana is at its owner's complete disposal. The rules as to the in heritance of Stridhana vary with the school, and even with the locality, and with the origin of the particular property. They favour women more than do the rules of inheritance to males.

Marriage.—The code of Manu enumerates eight kinds of mar riage, some of which are barbaric or even savage. Four were "approved" and four "disapproved." Two only still survive, the Brahma, an approved form, nominally a gift of the bride by her father to the bridegroom, and, among the lower castes, the Asura, a disapproved form, nominally a purchase of the bride by the bridegroom. On the initiative of Indian legislators an Act is in force forbidding marriages of children, which formerly were very common. The essential part in a Hindu marriage is the seven steps taken together by bridegroom and bride round the sacred fire. Among the higher castes the relation ships within which marriage is forbidden are extensive. The parties should not belong to the same gotra or large family, and they must not be related within six generations on the father's side or within, probably, five on the mother's. Marriage must be within the caste, and sometimes, by custom, within the sub-caste. Strictly speak ing there is no divorce in Hindu law. But divorce is prac tised by many of the lower castes, and an unchaste wife forfeits all rights except that to "starving maintenance." A Hindu man may marry any number of wives, and may have any number con currently. A Hindu woman can have only one husband, and strict Hindu law forbade the re-marriage of widows, even of virgin widows. Many of the lower castes always allowed widows to re marry, some of them imposing conditions on such re-marriage; and by Act XV. of 1856 any Hindu widow may validly re-marry. She forfeits on re-marriage any property inherited by her from her first husband or from a predeceased son, unless she belongs to a caste which, before 1856, permitted re-marriage accompanied by retention of such property. Equally she forfeits all rights of maintenance as widow of her first husband.

By Act XXX. of 1923 amending Act III. of 1872 a Hindu man and a Hindu woman of different castes may lawfully marry. Act III. of 1872 originally provided for the marriages of persons of whom neither professed the Christian, Jewish, Mohammedan, Hindu, Jain, Sikh, Buddhist or Parsee religion. Marriages under it are monogamous, and are subject to divorce on the same grounds as are marriages between Christians. And the parties come under the rules of inheritance for Christians, and go out of a joint family, and cannot originate one.

Suttee.—The custom for a Hindu widow, especially in the higher castes, to have herself burned alive on the funeral pyre of her husband was prohibited and made an offence under Lord William Bentinck's administration in 1829. In consequence Suttee is certainly no longer customary, and educated Hindus would revolt from it. But there have been sporadic cases, even as lately as 1927. Those who help the widow to immolate herself are guilty of culpable homicide not amounting to murder, under the Indian penal code; if she is above the age of 18 years, the fact that she suffers death with her own consent then reducing the nature of the offence. If she is under 18 the offence is murder or abetment of murder, punishable even with death. The widow's own insistence on becoming Suttee is a feature of all present-day cases.

Sonship.—In very ancient Hindu law the son would seem to have been his father's property, much as he was in ancient Roman law. In Manu eight kinds of sons are enumerated. Most of them are "sons" because at the moment of birth the woman who bore them was owned by the "father." Some are bought or self surrendered. Now only two kinds are recognized, legitimate sons born in marriage, and adopted sons. (Adoption of daughters is mostly unknown to Hindus.) There are two extant forms of adoption, the Dattaka and Kritina. The former is used all over India. The connection between heirship and the duty of per forming obsequies and ceremonials has already been noticed. To secure a Hindu's happiness hereafter the ceremonials should be carried on by his descendants for at least three generations. A grandson or a great-grandson can, however, make up for the absence of a son or grandson or both. But it is a grave misfortune for a Hindu to have no such descendants at all, so a male Hindu who has no son, agnate grandson, or agnate great-grandson may adopt a son. The adopter may be married, a bachelor, or a wid ower. Among the higher castes the boy must not have been in vested with the sacred thread (possibly this will not apply when the child is a brother's son of the adopter, or otherwise in the family) and must be the child of a woman whom the adopting father could have married had not someone else done so. So a brother's son and a wife's sister's son are obviously eligible. And the adoption must be within the caste. The child must be willingly given by his natural parents (a boy cannot be re-adopted) so an orphan cannot be adopted.

Because of the importance of having a son, the widow of a de ceased Hindu can sometimes adopt for him. Of course the condi tion of sonlessness must exist. Given that, in western India a widow can adopt unless her husband has forbidden her to while he was alive. In southern India she can adopt if in his lifetime he authorized her to, or if after his death his near agnate relations approve of the adoption being made. In Mithila she cannot adopt at all, and elsewhere she can adopt if in his lifetime her husband authorized her to. These are the varying interpretations of the text "Nor let a woman adopt a son without the consent of her lord." A married man who adopts does not need his wife's assent to the act, though she may become the adoptee's legal mother. Adoption removes the child entirely from his own family (except that he still cannot marry within its prohibited degrees) and makes him for all legal purposes, including inheritance from and by col laterals, the son of his adoptive father. Ceremonies are necessary, for an adoption is a religious act. Handing over by the natural parent or parents, with a sacred fire at the place, is the principal ceremony, and the absence of evidence of this would throw doubt upon the validity of an adoption, were this disputed. Among some of the lower castes even a married man can be adopted, and the rule about the mother being a possible wife of the adopting father does not hold. A son adopted to a deceased Hindu by his widow becomes the former's heir at once. If there is membership of a Mitakshara joint family, or if the adopting widow has succeeded to, and still possesses, her deceased husband's estate, things are simple enough. But adoptions by widows fail where their effect, if they were valid, would be to devest the estate of someone (other than the adopting widow) who holds it as heir of some deceased male, other than the person to whom it is sought to make the adoption. This rule is not a mere piece of theory, for if a son adopted dies without male issue, there may be authority to adopt one in his place, yet he may have married, in which case his widow, and not his adoptive mother, will be his heir. And an authority to adopt remains effective throughout the life of the widow to whom it is given, so long as she does not exhaust it. Cases have been known where a widow made a valid adoption more than so years after her husband's death.

Kritima Adoption.—The conditions stated above, other than that of sonlessness, apply in the case of Dattaka adoption only. The system of Kritima adoption is much looser. It is followed now only in Mithila, where, as we have seen, a widow never can adopt to her deceased husband. In Kritima adoption a sonless man or woman can adopt a son to himself or herself. The adoptee must consent to the adoption, and must be of full age. No cere mony is required, only mutual consent. The adopter and the adoptee succeed to each other, but neither succeeds to the other's collaterals. The adoptee is not taken out of his own family. The adoptee performs the obsequies of the adopter if the latter pre decease him. Any person within the caste, even for instance the adopter's brother, or his sister's son, can be adopted, and the adoptee may even be older than the adopter.

Lack of space forbids any discussion of the interesting matri archal system of the Nairs of Malabar, and of some other castes in that part of India. The joint family is there found in its strongest form, and the only kind of adoption ever necessary is that of a daughter.

See Sir E. J. Trevelyan, Hindu Law (and ed. 1917) ; J. D. Mayne, Hindu Law and Usage (9th ed. 1922, edit. by Sir V. M. Coutts Trotter) . (W. MAR.; A. SAB.)

family, property, sons, daya, joint, mitakshara and bhaga